Wednesday, July 15, 2015
Howard Wasserman has posted on SSRN his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.
This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.
Wednesday, July 1, 2015
In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”
According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.
Monday, June 29, 2015
(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and
(2) Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Saturday, June 27, 2015
By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).
According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.
So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.
Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson.
The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.
Monday, June 8, 2015
(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Wednesday, June 3, 2015
Two weeks ago, federal district judge Callie Granade certified a class action in the Strawser case and issued a class-wide injunction forbidding enforcement of Alabama’s ban on same-sex marriage. She stayed the injunction, however, until the U.S. Supreme Court issues its ruling in Obergefell v. Hodges, which is expected later this month.
In the meantime, two groups opposed to same-sex marriage have returned to the Alabama Supreme Court, seeking “clarification and reaffirmation” of that court’s earlier mandamus ruling ordering Alabama probate judges not to issue marriage licenses to same-sex couples. Yesterday’s motion asks the Alabama Supreme Court “to enter an order clarifying and reaffirming the continued effectiveness of the Mandamus Order despite entry of the conflicting Strawser Class Injunction.”
Thursday, May 21, 2015
Alabama Same-Sex Marriage Litigation Update: Federal Judge Grants Class Certification and Issues (but Stays) Class-Wide Injunction
Things had been fairly quiet in the litigation over Alabama’s same-sex marriage ban (here’s where things stood back in March). Today, U.S. District Judge Callie Granade made two important rulings in the Strawser case. In one order, she certified both a plaintiff class and a defendant class under Rule 23(b)(2). She wrote:
Plaintiffs’ motion to certify a Plaintiff Class consisting of all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages is GRANTED.
Plaintiffs’ motion to certify a Defendant Class consisting of all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages is GRANTED.
In another order, Judge Granade concluded—yet again—that Alabama’s ban on same-sex marriage is unconstitutional. Accordingly, she granted the plaintiff’s motion for a preliminary injunction; but she also ordered that “because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases, the above preliminary injunction is STAYED until the Supreme Court issues its ruling.”
Monday, May 18, 2015
1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.
3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Tuesday, May 5, 2015
Yesterday the Supreme Court issued a unanimous decision in Bullard v. Blue Hills Bank. The opinion, authored by Chief Justice Roberts, begins:
Chapter 13 of the Bankruptcy Code affords individuals receiving regular income an opportunity to obtain some relief from their debts while retaining their property. To proceed under Chapter 13, a debtor must propose a plan to use future income to repay a portion (or in the rare case all) of his debts over the next three to five years. If the bankruptcy court confirms the plan and the debtor successfully carries it out, he receives a discharge of his debts according to the plan.
The bankruptcy court may, however, decline to confirm a proposed repayment plan because it is inconsistent with the Code. Although the debtor is usually given an opportunity to submit a revised plan, he may be convinced that the original plan complied with the Code and that the bankruptcy court was wrong to deny confirmation. The question presented is whether such an order denying confirmation is a “final” order that the debtor can immediately appeal. We hold that it is not.
In the opinion, Roberts notes some of the differences between appealability in bankruptcy proceedings and in other kinds of federal litigation:
In ordinary civil litigation, a case in federal district court culminates in a “final decisio[n],” 28 U. S. C. §1291, a ruling “by which a district court disassociates itself from a case,” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995). A party can typically appeal as of right only from that final decision. This rule reflects the conclusion that “[p]ermitting piecemeal, prejudgment appeals . . . undermines ‘efficient judicial administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981)).
The rules are different in bankruptcy. A bankruptcy case involves “an aggregation of individual controversies,” many of which would exist as stand-alone lawsuits but for the bankrupt status of the debtor. 1 Collier on Bankruptcy ¶5.08[b], p. 5–42 (16th ed. 2014). Accordingly, “Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.” Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U. S. 651, 657, n. 3 (2006) (internal quotation marks and emphasis omitted). The current bankruptcy appeals statute reflects this approach: It authorizes appeals as of right not only from final judgments in cases but from “final judgments, orders, and decrees . . . in cases and proceedings.” §158(a).
Nonetheless, a court’s decision to reject a repayment plan but to give the debtor a chance to submit a revised plan does not qualify for an immediate appeal. Roberts explains:
Denial of confirmation with leave to amend, by contrast, changes little. The automatic stay persists. The parties’ rights and obligations remain unsettled. The trustee continues to collect funds from the debtor in anticipation of a different plan’s eventual confirmation. The possibility of discharge lives on. “Final” does not describe this state of affairs. An order denying confirmation does rule out the specific arrangement of relief embodied in a particular plan. But that alone does not make the denial final any more than, say, a car buyer’s declining to pay the sticker price is viewed as a “final” purchasing decision by either the buyer or seller. “It ain’t over till it’s over.”
Wednesday, April 29, 2015
Today the Supreme Court wrapped up its oral arguments for the Term. There are lots of cases still to be decided, of course. And the Court should be taking action this week (Friday is the deadline) on the latest batch of proposed amendments to the Federal Rules of Civil Procedure.
Also in the coming weeks, the Court will be considering an interesting petition for certiorari out of the Seventh Circuit on summary judgment. Estate of Brown v. Thomas (No. 14-1139) presents an important question that federal courts have been struggling with ever since Celotex and the 1986 summary judgment trilogy:
What initial burden does Fed. R. Civ. P. 56 impose on a moving party that seeks summary judgment on the ground that the non-moving party cannot prove its case?
Monday, April 27, 2015
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
The Court granted cert. notwithstanding an invited brief from the Solicitor General arguing against review. That brief explained:
The court of appeals held that respondent had established Article III standing to sue petitioner “for publishing inaccurate personal information about [respondent]” because petitioner allegedly had violated respondent’s “statutory rights” protecting his “personal interests in the handling of his credit information.” Pet. App. 1a, 8a. The court below correctly concluded that the publication of such false information is a cognizable Article III injury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, April 22, 2015
Today the Supreme Court issued its decisions in United States v. Wong and United States v. June. As covered earlier, the cases address whether two time limits contained in the Federal Tort Claims Act are subject to equitable tolling. (Although Wong and June were not formally consolidated, the Court explains in footnote 1 that “we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines.”)
It’s a 5-4 split. Once again, the Justices examine—and disagree about—whether a statutory time limitation is “jurisdictional.” Justice Kagan writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Here’s the opening paragraph (emphasis added):
The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.
Justice Alito writes a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas. He argues that these limitations are jurisdictional and create an “absolute bar” that “is not subject to equitable tolling.”
Wednesday, April 1, 2015
Yesterday the Supreme Court decided Armstrong v. Exceptional Child Center, ruling by a 5-4 vote that Medicaid providers could not sue state officials for failing to comply with § 30(A) of the Medicaid Act (also known as the “equal access” provision). Justice Scalia writes the majority opinion, joined in full by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer joins part of Scalia’s opinion to provide the fifth vote, but also authors a separate concurring opinion. Justice Sotomayor writes the dissenting opinion, joined by Justices Kennedy, Ginsburg, and Kagan.
Tuesday, March 31, 2015
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.
This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.
My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.
[Cross-posted at PrawfsBlawg]
Thursday, March 26, 2015
Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract:
In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.
Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.
Tuesday, March 24, 2015
Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”
Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”
What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can. Quoting a number of earlier decisions (citations omitted), Justice Alito writes:
“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”
The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”
Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:
The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.
[Cross-posted at PrawfsBlawg]
Monday, March 23, 2015
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at PrawfsBlawg]
Wednesday, March 18, 2015
Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)
Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”
Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”
I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Wednesday, March 11, 2015
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
Monday, March 2, 2015
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained: